“By permitting Congress to regulate so much of our lives under the Commerce Clause, the Supreme Court has changed the federal government from one of limited and enumerated powers, to one with few exceptions to its power.” – Walter E. Williams, Professor and Columnist
It has been proven out many times by history, that human nature is vastly more influential on the affairs of man, than any agreements that exist between men to control their affairs. Charters, constitutions and treaties between geopolitical entities, or between governments and the people, are nothing more than “blue prints” to govern those affairs. But since men have been breaking agreements between themselves since the dawn of civilization, disputes arise often and those disputes are sometimes resolved through negotiations and arbitration, or the passing of, or revisions to, more “blue prints”, or other times they are resolved by war, when negotiations or arbitration reach an impasse. Thus, there is a constant battle between human nature and those “blue prints” that are designed to control human nature.
There is a general misconception by most people on what a contract (a “blue print” for behavior) between people, businesses, or governments, really means and what it is designed to do. We can’t remember the number of times people have said to us, in the course of 30 years in real estate development and investments: “He can’t do that, we have a contract!” And we could only respond with, “…. people can do anything they want to do. A contract only spells out what the parties are to do while the contract is in full force and effect and what to do when one or both of the parties violate or are in breach of the contract terms.” That is why contract law takes up so much room on the law bookshelf and that is why courts are full of people who violate or allegedly violate their contracts. Again, it is readily apparent that human nature has much more power over man, than man has to control human nature by law.
The history of the American Constitution is riddled with disputes over the interpretation of the words in the document, in context with the intent of the Framers. And so the debate rages on between opposing factions as to just how much power is given to the Federal Government by virtue of Article I, Section 8, of the U. S. Constitution, but more specifically, Article I, Section 8, Clause 3, wherein it states with simplicity:
“To regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes.”
It is absolutely amazing that a statement as simple as this, can lead to endless bickering, debate, lawsuits and interpretation, but it has. Congress doesn’t know for sure where the boundaries are and the judicial branch, over the years, has adjudicated the Commerce Clause from different perspectives and different rationales, muddying the waters even more. Most presidents are only interested in increasing their powers and many have. They keep coming up against that old “Constitution thing” and do everything in their power to get around it by issuing executive orders and/or directives to their cabinet secretaries, or “packing” supreme courts. The unconstitutional acts by presidents would fill volumes. Unconstitutional acts by Congress would fill even more. Can anyone of us forget what Speaker Pelosi said when asked by a reporter if Obama Care was constitutional? She spouted, “… are you serious, are you serious?” Not only did her retort not answer this all-important question, it was arrogant and elitist. If the truth be known, Speaker Pelosi had no clue as to whether Obama Care was constitutional and she didn’t care one whit. She didn’t even care what was in the legislation when she said, “…. we have to pass it so we can find out what’s in it.” That statement is not just dumb, it’s insane, but very typical of how the mind of a politician, any politician, works.
Addressing the Constitution and the Commerce Clause, the maverick and ever-controversial Edward Banfield argued that:
“Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government — meaning government in accordance with the will of the people — and the maintenance of limits on the sphere of government.”
If Mr. Banfield is correct and it is quite likely that he is, then the progression of federal power can only lead to eventual absolute power in the future and it could very well take another revolution to restore power to the people once again. It would seem that the life span of Republics is capped at about 200 to 300 years before they collapse due to breaking of their bonds with the “blue prints” that established them.
Throughout history there have been and always will be, powerful, ambitious, politically influential and/or wealthy men who will thwart, circumvent, or manipulate, for power’s sake, the “blue prints” that peaceful men establish to control human nature. It is a constant struggle to keep these powerful men within significant limits of their power, such that the rest of civilization is allowed to remain free. Many wars have been fought and millions of lives lost in that endeavor. It is logical to ask, given human nature and powerful men being what they are, whether it shall ever be thus?
Since it seems to be inevitable that there will always be powerful men that break “blue prints” with the people, it is not that difficult to extrapolate that if you have a wide-open, broad and an essentially undefined clause in the U. S. Constitution that grants unlimited power to the Federal Government, the door is open to virtually ANY power the government chooses to invoke. “ANY” power can only be defined as “ABSOLUTE” power. Since U. S. Supreme Court decisions continue to expand the breadth of the Commerce Clause, how long will it be before the Federal Government declares ABSOLUTE power? By definition, ABSOLUTE power is a dictatorship. And coincidental with that declaration, when will the Federal Government then declare that the other 16 enumerated powers in Article I, Section 8 of the Constitution and maybe even the entire constitution itself, null and void?
One might ask, how does the Federal Government continually exceed its powers under the Constitution, essentially without any accountability to the people? The answer lies in the wide interpretations of the limits and powers granted or prohibited under the Constitution, by the ever-changing character of the U. S. Supreme Court and lower court precedents.
When FDR took power in 1933, the U. S. Supreme Court was a conservative court and initially resisted FDR’s initiatives and actions that violated the Constitution. By some struck of luck (for FDR), the court shifted from a conservative court to a liberal court by one of the justices switching sides, or so it is alleged. With the new liberal court, FDR was assured of passing most of his unconstitutional “plans” to save America from the Great Depression, by setting in motion a series of social initiatives under the “New Deall” and establishing the Social Security System. Although the U. S. Supreme Court did shoot down some of FDR’s New Deal programs, in the end it literally green-lighted a social pathway for FDR to increase his executive powers, well beyond the intent of the Framers. The result was he became the great Messiah that “saved” the people of America from the Great Depression, but in the process, without the people knowing it, took away more of their freedoms by weakening the U. S. Constitution and increasing federal power.
But even before FDR, there was President Wilson who took serious issue with the U. S. Constitution and was in favor of World Government. From that perspective he initiated the creation of the League of Nations and he also signed off on the creation of the Federal Reserve and the Internal Revenue Service under the 16th Amendment, allegedly ratified by the U. S. Congress and 75% of the States. Many scholars and some political types still have serious questions about the ratification process that gave us the 16th Amendment. Could it be that once again, this government of powerful, ambitious men, purposely ignored the “blue print” for ulterior motives, or to increase their power?
To get a more solid perspective on the history of the Commerce Clause, we read the following two treatises. If you are truly interested in the expansion of federal power under the Commerce Clause, we encourage the reader to study them. We also encourage the reader to study the information contained in the “New Deal” link above. It is very enlightening on how FDR changed the character of America to one of dependence on government and away from self-reliance and independence. The information also reflects on how this was accomplished through the manipulation of government processes and the circumvention of constitutional safe guards.
Given the foregoing, the question remains, can the people stop the advance of federal power by its expansion of the limits of the Commerce Clause, aided and abetted by the U. S. Supreme Court? In other words, can federal power be rolled back and by what means could that be accomplished?
The answer to the question rests entirely on, 1) the political makeup of the American population; and 2) the size, commitment and determination of that segment of the population that want to see federal power rolled back; and 3) whether a preponderance of the states will resist federal power under the 9th and 10th Amendments. If the political makeup of the general population is such that it will elect only those representatives, at any level of government, that will continue the handouts and benefits from government and that segment of the population is a considerable majority, no peaceful initiative by the minority will ever change the condition. If however, there is a shift in the mindset of the general population towards the concepts and inevitability of the individual’s unalienable rights, then the representatives elected by this larger segment of the population will begin to swing America back to its roots under a strongly defended Constitution.
Finally, if significant portions of the sovereign states of America decide to exercise their sovereign power under the 10th Amendment, growing federal power could be slowed down. As a hint that the states may be moving in that direction, several states have taken on Obama Care and exempted their citizens from it, or have sued the federal government to render Obama Care unconstitutional. In another interesting move, a model NULLIFICATION resolution for states has just surfaced that would essentially tell the Federal Government where to get off. If such a resolution were to gain traction among the states and it just might, we could see a reversal of the growth of federal power. In that resolution is a description of what the Founding Fathers meant when they inserted the Commerce Clause in the Constitution’s enumerated powers (Article I, Section 8, Clause 3). The resolution also discusses the roots of the “Necessary and Proper” clause.
Thus, if the roll back to our roots of freedom and liberty is to occur, the peaceful answer becomes one of education of the general population over a significant time span that could end up being several generations. It will also take the states arching their backs against the Federal Government using the “Commerce” and “Necessary and Proper” clauses to expand the Federal Government’s power even further.
It took us over 100 years to get where we are today with the Progressive mentality and agenda fully embedded in the body politic and all of our institutions. This Progressive mentality paved the way for the growth in federal power. “The Parallax Prophecies” predicts, that if a roll back is to occur, even if it is possible, it could take many years and maybe even a lifetime. So now the question is, will those who still believe in America’s roots of freedom and liberty, be patient enough to wait a lifetime, peacefully, to realize the return of America to a Constitutional Republic?
Perhaps it would be helpful to put all of this in perspective. It took over 150 years of British rule of the colonies for the colonialists to finally break free from rising British tyranny. Unfortunately, to break free, the colonialists had to result to insurrection and armed revolution. Can America, as it is now constituted, avoid 5,000 years of history repeating itself, over, and over, and over again because human nature is more powerful to influence the affairs of man, than man’s “blue prints” are to influence human nature? In the final analysis, will the Commerce Clause be the pathway to an American dictatorship?
To answer these questions, allow us to make this one admonition to those who want to see America continue down the dangerous and suicidal path it is now on, towards a dictatorship, or an Absolute Democrat Monarchy, or national bankruptcy and the dissolution of American sovereignty:
“Never underestimate a determined minority to reach its objective, especially if that determined minority is made up of free-loving Americans!”
© Copyright Sunday, March 18, 2012 – All Rights Reserved
~ The Author ~
Ron Ewart is the President of The National Association of Rural Landowners and nationally recognized author on freedom and property rights issues. Ron may reached for comment via email at email@example.com.